AG's Office had given county until noon Tuesday to stop

By Charlie BrennanCamera Staff Writer

Posted:
07/01/2014 07:32:57 AM MDT

Updated:
07/01/2014 09:02:13 PM MDT

Boulder County Clerk Hillary Hall and Colorado Attorney General John Suthers stayed on a collision course Tuesday, as Hall announced she'll continue to issue marriage licenses to same-sex couples despite a new threat of legal action.

"It's not about politics," Hall told reporters at the Clerk and Recorder's Office in Boulder. "It's about people who love each other, their families, their friends, our coworkers, and doing what's right and just. And history will be on our side."

Boulder County has issued marriage licenses to 88 same-sex couples since a U.S. 10th Circuit Court of Appeals ruling June 25 throwing out a gay marriage ban in Utah. Five of the licenses were granted Tuesday, officials said.

The Attorney General's Office had said it was willing to grant Hall a 10-day extension beyond Tuesday — which she had sought to consider Suthers' proposal to seek a compromise on the issue at the Colorado Supreme Court — but only if Hall stopped issuing marriage licenses to same-sex couples by the original deadline of noon Tuesday.

In a statement released following the expiration of that deadline, Hall said she received a response from the attorney general and that her request was "essentially denied" because "the terms for more time were contingent on stopping the issuance of same-sex licenses."

Hall had asked that Suthers extend his deadline until July 10.

"Our position is the same as previously stated," Hall said. "Same-sex licenses are legal and just licenses, and we will continue to issue them."

On Friday, Colorado Solicitor General Dan Domenico proposed in a letter to Hall that Boulder County agree to immediately cease issuing marriage licenses that don't comply with state law and a state constitutional ban on same-sex marriages, and join in asking the state Supreme Court to rule on the matter.

The letter at midday Tuesday from Domenico to County Attorney Ben Pearlman warned, "If she elects to continue (issuing licenses to same-sex couples) after today, I am afraid we will be forced to take legal action."

The Attorney General's Office asked to meet with Boulder County officials at their "earliest convenience." No such meeting had been scheduled by the end of business Tuesday.

The issue could now be headed quickly to the courts.

"With respect to the Boulder County clerk and recorder, absent the cooperation of the Boulder clerk and recorder, and seeking an expedited resolution of this matter, our office will focus on pursuing another legal strategy to secure compliance with existing Colorado law," said Carolyn Tyler, a spokeswoman for Suthers.

Hall told reporters she has received a lot of support from the public and doesn't feel she is out on a limb.

"If I was going to go crazy and rogue, I would have started doing this the first day I took office in 2007," she said.

'It's our window of opportunity'

University of Denver Law School professor Tom Russell, who is a plaintiffs' attorney in ongoing litigation against Colorado's same-sex ban in Denver and Adams counties, has also been tracking the legal storm fast coming to a head in Boulder.

"The ordinary thing for the attorney general to do would be to file a lawsuit seeking an injunction in the Boulder County District Court, and I actually think that's what the attorney general has to do," Russell said.

Julie Hoehing, left, and Nancy Cooley hug and kiss after receiving their marriage license Tuesday, while daughter Lia Cooley watches, at the Boulder County Clerk and Recorder's Office in Boulder on Tuesday. (MARK LEFFINGWELL)

"But the attorney general has suggested that they can jump right to the (state) Supreme Court," Russell said. "I've looked at it, and I think the legal authority for that is questionable, at best."

Meanwhile, six couples also filed a federal lawsuit in Denver on Tuesday seeking a declaration that Colorado's same-sex marriage ban is unconstitutional. Mari Newman, one of the attorneys filing the suit, said it was filed in part to support Hall, who Newman believes is acting lawfully.

"We are seeking, among other things, to vindicate the right of the Boulder clerk and recorder," Newman said.

One couple to receive a license, and exchange wedding vows on the spot at Hall's office on Tuesday, was Julie Hoehing, 51, and her partner of 15 years, Nancy Cooley, 57, both of Louisville.

"It's our window of opportunity," Cooley said, noting that they obtained their license just three hours before the noon deadline set by Suthers. "We're under the wire."

The couple said their vows were exchanged little more than a year after Hoehing was diagnosed with breast cancer.

"I'm a survivor," Hoehing said, beaming, as more than a half-dozen friends and family members were gathered nearby.

"And came through to the other side," Cooley said. "So after 15 years, if we made it through the last year, we can make it through anything. That's what makes this so important."

10th Circuit ruling

Hall began issuing licenses to same-sex couples June 25 after she announced that a U.S. 10th Circuit Court of Appeals ruling throwing out a gay marriage ban in Utah cleared the way for same-sex marriages in Colorado.

That ruling has been stayed by the Denver-based appellate court.

Boulder County's testing of same-sex marriage in the U.S. 10th Circuit has unfolded to date without the involvement of District Attorney Stan Garnett, who challenged Suthers unsuccessfully in the race for Colorado attorney general in 2010.

"Under the constitutional and statutory structure of the state of Colorado, the district attorney has a duty to advise elected officials on legal issues, when asked," Garnett said Tuesday. "If Clerk Hall asks for the help and advice of my office, I will be happy to provide it. But I have not been asked."

With the legal terrain for same-sex marriage in Colorado — or at least in Boulder County — apparently still quite fluid, Hoehing and Cooley didn't voice any concern about whether their union could be invalidated through the actions of the Attorney General's Office or the courts.

"It won't negate it," Cooley said. "And it certainly won't negate how we feel, and our commitment to each other."

The union of Hoehing and Cooley at Hall's office Tuesday morning was witnessed by Mardi Moore, executive director of the LGBT advocacy group Out Boulder.

"We live in the best county in Colorado," Moore said. "The tears and the joy that I feel right now is for the 80-some couples including a couple that I witnessed today who received their license after being denied their full civil rights for close to a lifetime.

"It's a great day for Boulder County. It's a great day for the lesbian and gay community of Boulder County."

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